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Dolores Flores v. Michael J. Astrue


January 11, 2013


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on December 29, 2011, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income benefits ("SSI"). On February 15, 2012, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on September 11, 2012, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the first alternative, finding plaintiff disabled as of her fifty-fifth birthday and ordering the payment of benefits, or, in the second alternative, remanding the matter for further administrative proceedings; and defendant seeks an order affirming the Commissioner's decision or, in the alternative, remanding the matter for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On March 31, 2009, plaintiff filed an application for SSI, alleging an inability to work since August 31, 2001 (Administrative Record ("A.R." 19), due to neck pain, back pain, knee and ankle injury, and anxiety (A.R. 22, 64, 69). Plaintiff has past relevant work experience as a mail clerk. (A.R. 24.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 19, 64-67, 69-73), plaintiff requested a hearing (A.R. 19, 48-54). On February 7, 2011, plaintiff, who was represented by an attorney, appeared and testified at a hearing before Administrative Law Judge Robert A. Evans (the "ALJ"). (A.R. 19, 30-47.) On March 3, 2011, the ALJ denied plaintiff's claim (A.R. 19-25), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-5). That decision is now at issue in this action.


In his decision, the ALJ found that plaintiff has not engaged in substantial gainful activity since March 31, 2009, the application date. (A.R. 21.) The ALJ further found that plaintiff has the severe impairments of "status post lumbar fusion[,] degenerative disc disease in the cervical and lumbar spines[,] and anxiety." (A.R. 21.) The ALJ concluded that such impairments, however, do not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

The ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform light, unskilled work as defined in 20 C.F.R. § 416.967(b). (A.R. 21.) The ALJ found that plaintiff's past relevant work as a mail clerk does not require the performance of work-related activities precluded by plaintiff's RFC. (A.R. 24.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since March 31, 2009. (Id.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial evidence, only those "'reasonably drawn from the record'" will suffice. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff alleges that the ALJ: (1) did not properly determine whether plaintiff meets or equals Listing 12.05(c); and (2) failed to properly consider the opinions of plaintiff's physicians and, thus, did not properly assess her RFC or her ability to perform her past relevant work. (Joint Stipulation ("Joint Stip.") at 3-13, 18-24.)

I. The ALJ's Determination That Plaintiff Does Not Meet Or Equal A Listing Is Not Supported By Substantial Evidence.

At step three of the sequential evaluation process, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals an impairment listed in the Appendix to federal regulations.*fn1 20 C.F.R. S 416.920(d). Conditions set forth in the Listing of Impairments ("Listings") are considered so severe that "they are irrebuttably presumed disabling, without any specific finding as to the claimant's ability to perform his past relevant work or any other jobs." Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995)(emphasis added). The Listings were "designed to operate as a presumption of disability that makes further inquiry unnecessary." Sullivan v. Zebley, 493 U.S. 521, 532 (1990). If a claimant shows that his impairments meet or equal a Listing, he will be found presumptively disabled. 20 C.F.R. §§ 416.925-416.926; see Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1221-22 (9th Cir. 2010).

The claimant bears the burden of establishing a prima facie case of disability under the Listings. See Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). To "meet" a listed impairment, the claimant must establish that his condition satisfies each element of the listed impairment. See Zebley, 493 U.S. at 530; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). To "equal" a listed impairment, the claimant "must establish symptoms, signs, and laboratory findings" at least equal in severity and duration to each element of the listed impairment. Id. at 1099-1100.

Plaintiff contends that the evidence establishes that her impairment meets or equals the criteria of Listing 12.05C. Under Listing 12.05C, plaintiff must be found disabled if she shows the following:

12.05 Mental Retardation: Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairments before age 22.

The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.

C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function[.]

20 C.F.R. Part 404, Subpt. P, App. 1 § 12.05.

A. Valid IQ Score

When a claimant has different IQ scores for her verbal, performance, and/or full scale IQ, the lowest score is used to evaluate whether the claimant meets or equals Listing 12.05(C). 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(c). In an August 15, 2009 consultative evaluation by clinical psychologist Ahmad R. Riahinejad, Ph.D., plaintiff was assessed with a verbal IQ score of 70, a performance IQ score of 77, and a full scale I.Q. of 71 on the Wechsler Adult Intelligence Scale. (A.R. 378.) None of these scores were found to be expressly invalid by the ALJ, and in fact, the ALJ gave substantial weight to the findings of Dr. Riahinejad in his decision. Accordingly, because plaintiff has a valid verbal IQ score of 70, it appears that she satisfies this requirement of Listing 12.05(C).

B. Additional Impairment

Listing 12.05(C) further requires that plaintiff has "a physical or other mental impairment imposing an additional and significant work-related limitation of functioning." 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 12.05(C). "[A]n impairment imposes a significant work-related limitation of function when its effect on a claimant's ability to perform basic work activities in more than slight or minimal." Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir. 1987). In other words, this requirement is met when plaintiff has an additional impairment(s) that is "severe." See 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 12.00(A) (noting that "[f]or Listing 12.05[(C)], we will assess the degree of functional limitation the additional impairment(s) imposes to determine if it significantly limits your physical or mental ability to do basic work activities, i.e., is a 'severe' impairment(s), as defined in §§ 404.1520(c) and 416.920(c)"). At step two, the ALJ found that plaintiff's impairments of "status post lumbar fusion[,] degenerative disc disease in the cervical and lumbar spines[,] and anxiety" are "severe" as defined by 20 C.F.R. § 416.920(c). (A.R. 21.) Accordingly, plaintiff satisfies the second component of Listing 12.05(C).

C. Onset Prior To Age 22

Plaintiff also must show that she has significantly subaverage general intellectual functioning with deficits in adaptive functioning with an onset before age 22. 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 12.05. As noted supra, Dr. Riahinejad assessed plaintiff with a verbal IQ score of 70, a performance IQ score of 77, and a full scale I.Q. of 71. (A.R. 378.) Dr. Riahinejad noted that "[t]hese scores place [plaintiff] within the borderline range of intellectual ability." (Id.) Dr. Riahinejad opined that plaintiff is able to, inter alia, understand, remember, and carry out simple and repetitive instructions but noted that plaintiff has moderate difficulty understanding, remembering, and carrying out complex and detailed instructions. (A.R. 379.) Likewise, State Agency medical consultant L. O. Mallare, M.D., whose opinion the ALJ afforded great weight, found plaintiff to be, inter alia, moderately limited in her ability to: understand, remember, and carry out detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; and perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (A.R. 394.) Based on plaintiff's mental function, Dr. Mallare limited plaintiff to performing tasks with one to two step instructions. (A.R. 396.)

The Commissioner contends, however, that plaintiff has failed to demonstrate the onset of her impairment before the age of 22. While it is true that plaintiff's IQ tests were administered when she was 53 years old, "courts have held that a valid qualifying IQ score obtained by the claimant after the age of 22 creates a rebuttable presumption that the claimant's mental retardation began prior to the age of 22, as it is presumed that IQ scores remain relatively constant during a person's lifetime." Schuler v. Astrue, 2010 U.S. Dist. LEXIS 34744, at *17 (C.D. Cal. Cal. Apr. 7, 2010); see Hodges v. Barnhart, 276 F.3d 1265, 1268-69 (11th Cir. 2001)(noting that IQ tests after age 22 satisfy the listing criteria and "create a rebuttable presumption of a fairly constant IQ throughout life")(citing Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001), Luckey v. U.S. Dept. Of Health and Hum. Servs., 890 F.2d 666, 668 at *10-12(4th Cir. 1989); see also Woods v. Astrue, 2012 U.S. Dist. LEXIS 30211, at *10-*12 (E.D. Cal. Mar. 7, 2012)(collecting cases and adopting presumption); Forsythe v. Astrue, 2012 U.S. Dist. LEXIS 7744, at *18-*20 (E.D. Cal. Jan. 24, 2012)(same); Jackson v. Astrue, 2008 U.S. Dist. LEXIS 100411, at *6 (C.D. Cal. Dec. 11 2008)(noting that "several circuits have held that valid IQ tests create a rebuttable presumption of a fairly constant IQ throughout a claimant's life," and finding "the reasoning of the Seventh, Eighth, and Eleventh Circuits to be persuasive"). This Court also finds this reasoning persuasive and notes that the ALJ did not provide any evidence to rebut this presumption.

However, while the above-noted evidence is arguably sufficient to satisfy Listing 12.05(C), the Court cannot conclude that a finding in plaintiff's favor is warranted. For example, although plaintiff dropped out of high school in the eleventh grade, she was "an average student" and not in any special education classes. (A.R. 376.) In addition, as the Commissioner properly notes, there is evidence that plaintiff was capable of engaging in unskilled work despite her intellectual functioning difficulties. (Joint Stip. at 17; see also A.R. 24 (noting that plaintiff "stated she worked at See's candies for 6 weeks and stopped because it was seasonal, not because she was disabled.")

Moreover, and critically, the ALJ's decision provides this Court with absolutely no guidance as to how the ALJ wrestled with these issues. Beyond stating that plaintiff did not meet a Listing, the ALJ never mentioned Listing 12.05(C) and/or addressed whether plaintiff met or equaled any of the requirements for that Listing. See Thresher v. Astrue, 283 Fed. Appx. 473, 475 (9th Cir. 2008)(remanding case so that the ALJ could consider whether plaintiff met Listing 12.05(C) and noting that "the ALJ's failure to mention section 12.05 and, in particular, Listing 12.05[(C)] makes it unclear whether the ALJ came to grips with the specific requirements of the section when she issued her decision"). Accordingly, remand is appropriate so that the ALJ may properly consider whether plaintiff meets or equals Listing 12.05(C).*fn2

II. Remand Is Necessary So That The ALJ Can Properly Consider The Opinions Of Dr. Riahinjad And Dr. Mallare And Revisit His RFC Assessment And Determination That Plaintiff Can Perform Her Past Relevant Work.

Plaintiff claims that the ALJ erred in failing to include in his assessment of plaintiff's RFC the opinions of Dr. Riahinjad and Dr. Mallare that plaintiff should be limited to simple and repetitive tasks -- the inclusion of which may have affected the ALJ's determination that plaintiff can perform her past relevant work.

It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 416.927(d).

In determining a claimant's RFC, an ALJ will consider all the relevant evidence in the record. 20 C.F.R. § 416.945(a)(1). In so doing, the ALJ will consider all claimant's medically determinable impairments, including those that are not "'severe.'" 20 C.F.R. § 416.945(a)(2). The ALJ also will consider "any statement about what [the claimant] can still do that have been provided by medical sources."

20 C.F.R. § 416.945(a)(3).

As relevant here, after performing a consultative, psychological evaluation of plaintiff on August 15, 2009, Dr. Riahinjad, whose opinion the ALJ gave "significant weight" (A.R. 23), diagnosed plaintiff with dysthmia, borderline intellectual functioning, and mild to moderate psychosocial stressors (A.R. 379). Dr. Riahinjad opined that plaintiff could, inter alia, understand, remember, and carry out simple and repetitive instructions, but she "could have moderate difficulty understanding, remembering[,] and carrying out complex and detailed instructions." (Id.) Similarly, after conducting a comprehensive medical record review, Dr. Mallare, whose opinion the ALJ also afforded "significant weight" (A.R. 23), opined that plaintiff "has adequate mental function to perform 1-2 step instr[uctions]" and is able to interact appropriately w[ith] others and adapt to simple changes in the workplace" (A.R. 396).

Notwithstanding the fact that the ALJ gave the opinions of Dr. Riahinjad and Dr. Mallare significant weight, the ALJ did not find that plaintiff has a borderline intellectual functioning impairment, and he did not include a restriction to simple and repetitive tasks and/or to tasks involving one to two step instructions in plaintiff's RFC.

Further, the ALJ failed to provide any reason, let alone an appropriate reason, for rejecting the opinions of Dr. Riahinjad and Dr. Mallare on this significant . This constitutes error.

Moreover, the ALJ's error is not harmless. While the Commissioner contends that the ALJ's RFC assessment -- limiting plaintiff to performing "light, unskilled work" -- and his determination that plaintiff can perform her past relevant work as a mail clerk -- a job which has a reasoning level of three -- are consistent with the opinions of Dr. Riahinjad and Dr. Mallare, the Court is not convinced that this contention is correct. Currently, there is a split among the circuit courts on whether a limitation to simple, repetitive, or routine tasks is compatible with the performance of jobs, such as that of mail clerk, with a level three reasoning as defined in the Dictionary of Occupational Titles ("DOT"). Adams v. Astrue, 2011 WL 1833015 (N.D. Cal. May 13, 2011)(comparing Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005)(concluding that a surveillance systems monitor job with a DOT reasoning level of three was not suitable for a claimant whose RFC limited her to "simple and routine work tasks") with Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009)(concluding that a claimant limited to "simple" work could perform the job of surveillance systems monitor, which had a reasoning level of three) and Renfrow v. Astrue, 496 F.3d 918, 920-21 (8th Cir. 2007)(concluding that a claimant with an inability to do "complex technical work" was not precluded from jobs with a reasoning level of three)). Although the Ninth Circuit has yet to address this question directly, the weight of authority in this Circuit holds that a limitation to simple, repetitive, or routine tasks is incompatible with a reasoning level of three.*fn3 Accordingly, because the ALJ failed to provide appropriate reasons for excluding the limitation to simple, repetitive, and/or one to two step instruction tasks, and this limitation could impact plaintiff's ability to perform her past relevant work involving level three reasoning, the ALJ's error is not harmless, and reversal and remand are appropriate.

III. Remand Is Required.

As indicated above, the Court has found that reversible error occurred. Because outstanding issues must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). On remand, the ALJ must consider whether plaintiff equals Listing 12.05(C), and if the ALJ finds that plaintiff does not, then the ALJ must adequately explain his reasoning. Additionally, the ALJ must give the opinions of Dr. Riahinjad and Dr. Mallare their deserved weight or give appropriate reasons for not doing so. In so doing, the ALJ may need to reassess plaintiff's RFC, in which case a vocational expert may be necessary to determine what work, if any, plaintiff can perform.


Accordingly, for the reasons stated above, the Commissioner's decision is REVERSED, and this case is REMANDED for further proceedings consistent with the Memorandum Opinion and Order.

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.


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